Papers on Appeal from Judgment and Orders

Papers on Appeal from Judgment and Orders

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. Excerpt: ...price and a recovery had for the balance only and to allege and establish by proper proof and findings any changes or modifications in the contract and the cost or value of the work and material called for by the contract and the cost or value of work and material as changed modified or substituted so that proper allowances could be made the owner as provided by I he contract and;i recovery had for the balance only. Spence vs. I lam, 163 N. Y., 220. Nesbit r. Braker, 104 A. D., 393. Barreto vs. Rothschild, 93 A. D., 211. Reitmayer rs. Crombie, 94 A. D., 303. The fact that the owner denied the allegations of the complaint and defended and counterelaimed for omitted and defective work under the contract did not relieve the plaintiff from the necessity of alleging and establishing his case by proper proof and findings. Barreto rs. Rothschild (supra). Reitmayer vs. Crombie (supra). Rut the Referee in this case reversed these established rules of law and permitted recovery for performance when there were omissions and defects and permitted recovery for the full contract price without making any deduction for these omissions and defects and permitted recovery for the work and material specified in the contract when the findings show I hat the contract was changed and modified and other work and material substituted of smaller size and inferior quality. And although under all the authorities it was necessary for the plaintiff to establish his case and prove the amount due, the Referee in his report, while precluding the owner, overlooked the rules of law and cast the burden upon the defendants (fols. 700, 761, 764). The Referee also erred in refusing the following in defendants' requests for rulings on conclusions of law: "4C. That the plaintiff having...
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Product details

  • Paperback | 228 pages
  • 189 x 246 x 12mm | 413g
  • United States
  • English
  • black & white illustrations
  • 1236824520
  • 9781236824523